Managing WHS risks from COVID-19: What questions should boards be asking?

COVID-19 presents many work health and safety (WHS) issues for organisations, including how to protect workers from contracting the virus and what WHS risks should be considered as the nation shifts to a working-from-home model.

To assist organisations in navigating the risks arising from the COVID-19 pandemic, Safe Work Australia has released some useful guidance which can be found here.

An overview of the advice and aspects particularly relevant for organisations and directors is summarised below.

Directors WHS duties

Directors have a legal duty to implement and monitor systems to ensure safe working conditions in their workplaces as far as reasonably practical. In nearly all Australian jurisdictions, there is a positive obligation on directors to exercise due diligence in relation to WHS.

To comply with the model WHS laws, organisations must identify risks at the workplace, and do what is reasonably practicable to eliminate those risks, or where this is not reasonably practicable, to minimise those risks.

While the Safe Work Australia advice is largely for management, to ensure directors can satisfy their due diligence obligations, boards must set up a compliance and risk management regime to monitor how management is ensuring compliance with the advice and eliminating risks related to COVID-19 so far as reasonably practicable.

Notably, each state and territory has its own work health and safety laws. Organisations ought to check the guidance in the relevant jurisdiction to see what advice is recommended to deal with COVID-19.

What should an organisation do to protect workers from COVID-19?

Organisations must have measures in place to eliminate or manage the risks arising from COVID-19. 

It will not be possible to eliminate the risk of workers contracting COVID-19 while carrying out work. However, organisations must do all that is reasonably practicable to minimise that risk. In the current COVID-19 environment, this duty would require that organisations at least:

• provide information about health risks posed by contact with the COVID-19;
• give instruction on ways to minimise those health risks; and
• monitor, assess and take steps to mitigate the risks that COVID-19 poses to health and safety of workers in their workplace.

Steps organisations take will vary from workplace to workplace depending on the type of work being carried out. Generally, organisations should take steps such as:

• staying up to date with the latest COVID-19 information and advice, including from:
  - the Australian Government Department of Health;
  - the Smartraveller website; and
  - advice from state or territory government agencies, including health departments and WHS regulators;
• sharing information with employees;
• restricting travel, where necessary;
• providing adequate protective equipment (if necessary), hygiene facilities and instruction on hygiene practices;
• requiring workers to stay away from the workplace if they are unwell and not fit for work, and encouraging them to seek medical advice as appropriate;
• having a contingency plan for when a worker tests positive for COVID-19, to mitigate the risks to the health of other workers and the risk of transmission in the workplace.

Privacy considerations may also need to be taken into account. It may not be necessary to release the name of the individual who has COVID-19. Personal information should only be disclosed or used if it is reasonably necessary in order to prevent or manage COVID-19 in the workplace.

Importantly, the advice states that organisations should seek advice from health authorities immediately if there has been a confirmed case of COVID-19 in your work place.

Working from home - what are the WHS risks an organisation should consider?

The model WHS laws still apply to all businesses if workers are required to work from home. In this instance, organisations must still ensure, so far as is reasonably practicable, the health and safety of their workers.

The worker also has a responsibility to take reasonable care, including complying with reasonable instruction given by the organisation or any policy and procedures provided.

Even in challenging circumstances such as this pandemic there are still measures organisations can take to minimise physical and psychosocial risks when workers are working from home. For example:

• providing guidance on what a good workstation set-up looks like;
• requiring workers to familiarise themselves with good ergonomic practices;
• maintaining daily communication with workers through phone, email or Skype; and 
• providing continued access to an employee assistance program and appointing a contact person in the business that workers can talk to about any concerns.

Risks that an employer should consider include work hours and breaks, and psycho-social risks such as isolation, reduced social support from managers and colleagues, fatigue and online harassment.

Stress and anxiety caused by COVID-19

As noted above, the COVID-19 pandemic may create risks to physical and psychological health through risk of workplace exposure or changes in work or duties because of the pandemic.

The organisation must also, so far as is reasonably practicable, ensure that workers and other people are not exposed to psychosocial health and safety risks that arise from your business.

Some important steps that organisations can take as an employer to eliminate or minimise workplace stress are to:

• consult workers on any risks to their psychological health and how these can be managed;
• provide workers with a point of contact to discuss their concerns and to find workplace information in a central place;
• inform workers about their entitlements if they become unfit for work or have caring responsibilities;
• proactively support workers who have been identified to be more at risk of workplace psychological injury (e.g. frontline workers or those working from home); and
• refer workers to appropriate channels to support workplace mental health and wellbeing, such as employee assistance programs.

Further information about work-related psychological health and safety duties can be found in this Safe Work Australia Guide: Work-related psychological health and safety A systematic approach to meeting your duties.

Key considerations for front-line staff

The advice also includes essential guidance for organisations whose workers are on the frontline of the crisis and what such organisations should do if they cannot get supplies of real or perceived necessities such as masks or hand sanitiser, as well as specific considerations for workers who may come into close contact with suspected or confirmed cases.

Workplace entitlements and obligations to employees

Practical information for approaching employee issues raised by COVID-19 can be found here and specific details on workplace entitlements and obligations can be found on the Fair Work Ombudsman web page here. This includes information about the legal framework governing matters like standing down workers without pay. The AICD encourages directors and Boards to work with management and their employees cooperatively to resolve these matters in a respectful and open manner.

JobKeeper Payment scheme

Under the scheme, businesses impacted by the Coronavirus will be able to access a subsidy from the Government to continue paying their employees. Affected employers will be able to claim a fortnightly payment of $1,500 per eligible employee from 30 March 2020, for a maximum period of 6 months.